Mosby v. Wall, 23 Miss. 81

Mosby v. Wall

23 Miss. 81 | Miss. | 1851

Mr. Justice Calyton

delivered the opinion of the court.

This is a case between the same parties, and in regard to the same contract with that of Peques v. Mosby & Kyle, 7 S. & M. 346. That was a suit at law, and the plaintiff failed therein, because the remedy was in equity. This is a bill filed to have the mistake made in drawing the title-bond corrected, and to obtain a decree for the sale of the premises, to satisfy the balance due upon the notes given for the purchase-money. The court below made a decree in conformity with the prayer of the bill. From this decree the defendants appealed. The defence is made principally by Kyle, who contends that the decree is erroneous; first, because the evidence of the mistake is sufficient; secondly, because the judgment at law is conclusive of the case; and lastly, because he was no party to the contract, which he alleges was made by his co-defendant Mosby, in their joint names, without his knowledge or consent, and without any subsequent ratification by him.

We think the evidence of the mistake is too clear to admit of any doubt, and that the court did right in ordering it to be corrected. It is unquestionably true, that in such cases the evidence should be free from doubt, but when it is of that character, no reason exists why the court should not act upon *83it. Mosby suffered the bill to be taken for confessed against him'.' Kyle does not deny it; in his answer he says, that he was in Texas when the bond was executed ; that if any error was committed, he knows nothing of it; that he was no party to it; and never consented to be bound by it. They both, however, entered into possession of the land as described in the bill, and occupied it without disturbance or adverse claim; and they did not take possession of the land described in the title-bond. Kyle in his answer also states that he never has claimed the land, and does not now claim it.

These circumstances, coupled with the proof in the cause, satisfy the mind that the land which they thus occupied was the land purchased, and not that described in the title-bond, there being a mistake in the latter as to the township in which it was situated.

Next, as to the conclusiveness of the judgment at law. The record in that case, which by agreement is made part of the record in this, and the decision in the case, show that the first suit was not competent to the investigation of the merits. Only judgments of that kind, in which the merits might have been tried, are conclusive. Agnew v. M’Elroy, 10 S. & M. 555. When this case was first in this court, it was expressly stated, that the remedy was in equity, and we see no reason to change that opinion. It is not necessary to pass upon the personal liability of Kyle under the contract in this case. The decree is not against him personally, but against the land, directing it to be sold for the satisfaction of the debt. It is like a decree for the foreclosure of a mortgage. The mortgage is the only matter on which chancery has jurisdiction, and it can render no decree against the person. Stark v. Mercer, 3 How. 382. Exactly the same rule applies here. Indeed, the decree is for a sale of the land, to pay the balance now due. Kyle sets up no claim to the land, and he can urge nothing against its sale, because he disclaims all connection with it.

If suit should ever be brought against him again, upon the notes, given by Mosby in their joint names for the purchase; then the question of his personal liability will arise.

*84The decree, directing' the mistake to be corrected, and ordering a sale of the land, to pay the balance of the purchase-money is affirmed, and the cause remanded, that the decree may be carried into effect.

Decree affirmed..